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The citizens own Valmont Butte but may have been denied their right to public hearings for decades

It’s been 70 years since the Allied Chemical Company first obtained a license to store radioactive and heavy metal contamination at Valmont Butte. And in all that time — despite the significant releases of toxic wastes into the environment, including millions of gallons of pollutants that went into the Public Service Company lakes and the discovery of contamination in the drinking water wells directly below the primary tailings pond dike dam, not to mention the burying of radium-contaminated soil as well as the questionable cleanup practices that are still occurring today — the citizens of Boulder who have been living with the health risks and are now picking up the cleanup tab have never been given a single opportunity for a public hearing on Valmont Butte. At least in the way a federal agency has recently defined the term “hearing.”

This disturbing fact raises a serious question. Has the public been denied hearings that it should have been granted under the laws governing the contamination at the butte?

It is an understatement to say that there is disagreement on this issue. Between the state and the federal governments, it’s not even clear whose rules are applicable.

In 1968, Colorado became an “agreement state” for the Nuclear Regulatory Commission (NRC). Sounds simple enough, but it’s not. What this means is that the state government was granted the right to regulate uranium-related activity and radioactive materials, such as the 465,000 to 1.1 million tons of radioactive tailings in the primary pond as well as the 200 truckloads of radium-contaminated soil buried somewhere on the butte by the city of Boulder in 1971. As an “agreement state,” The Colorado Department of Public Health and Environment (CDPHE) is authorized by the Nuclear Regulatory Commission to license and enforce all provisions of the Atomic Energy Act with the full force and authority of the NRC, which previously was charged with that task.

It now appears that the CDPHE and the NRC have differing views on exactly what this transfer of authority means, and it could have implications for Valmont Butte.

“The Nuclear Regulatory Commission has no authority in the state of Colorado. That agency has specifically discontinued its regulatory authority,” says Warren Smith, community involvement manager for the hazardous materials and waste management division of the CDPHE.

“It goes beyond delegating authority to Colorado,” says Smith. “They have completely ceded their authority in Colorado, so they have no authority to act retroactively on any licensing decision.”

While Smith seems quite sure of the state’s position, the NRC and a good number of attorneys apparently disagree on how some of these laws are implemented and enforced. Their differences of opinion have come to light in recent weeks over the CDPHE’s handling of a uranium mill license it issued for the new Piñon Ridge facility near the town of Nucla.

The question of how federal laws overseen by the NRC still apply in the state of Colorado when it comes to radioactive licensing is now being debated in court. The towns of Telluride and Ophir recently sued the state, arguing that the CDPHE’s procedures when issuing the license for the Piñon Ridge mill violated federal laws regarding management of uranium activity, particularly in regard to public hearings. One of the stipulations in the Atomic Energy Act is that public hearings be held when a radioactive materials license is issued, amended or terminated.

At the request of citizen activists in the area, the NRC conducted an inquiry into the Piñon Ridge mill and found that the CDPHE had issued the license without providing the proper public hearings, which should have included the opportunity for testimony under oath as well as cross-examinations. The CDPHE was unhappy with the NRC for having intervened into what it believed was clearly its jurisdiction. The state was further miffed by having heard about the NRC’s actions in media accounts instead of through direct contact. In a letter to the NRC, the CDPHE director complained about a letter the NRC wrote to an attorney for the activists. “We were disappointed because we have been engaged in communications with the NRC to discuss and work through the very issues you have unilaterally resolved,” the director wrote. “We were disappointed because rather than continuing to work with the state on these issues, you directly communicated your conclusions to a third party. […] We, instead, found out about this letter, which clearly impacts the state and its relationship with the NRC, through third parties, and after this letter was shared with the press.”

The letter further argues that the matter should have been brought up at this year’s review of the program in April.

It also clarifies that the “applicable federal statutes pertaining to licenses for uranium mills do not say there ‘shall’ be an evidentiary hearing on every uranium mill license; they say only that state law shall provide an ‘opportunity’ for public hearings.”

In the state’s interpretation of the federal law regarding such public hearings, only the mine or mill operator, the potential polluter, could have called for a public hearing.

In the case of Valmont Butte, for example, that would mean that only Allied Chemical, which applied for a radioactive materials license in 1971, after a state site inspection found levels of radium-226, uranium and polonium-210 at high enough concentrations to require regulation, could have requested a public hearing. This, of course would rarely be in the interest of the polluter, and so in practice, such public hearings likely not occur. And when it comes to Valmont Butte, they apparently haven’t.

While it appears for now that the NRC may pressure the state to have public hearings and testimony under oath at the Piñon Ridge site, it’s unclear how such a position would impact the public’s right to have a hearing regarding Valmont Butte. That’s because the Allied mill site falls into a unique category of contamination that no one seems quite sure how to define or regulate.

The Allied mill was not a uranium mill. It was a fluorspar mill that used ore that contained uranium. Once the fluorspar had been removed, the leftover tailings contained enough radioactivity to require a license, but not as much radioactivity as a uranium mill. Still, the license was issued under the power granted to the state by the NRC, and it would therefore seem that the same federal requirements for public hearings would apply. Not surprisingly, the state doesn’t see it that way.

According to the CDPHE’s Smith, “under the Colorado law, it’s not a uranium mill.”

“Not having these public meetings, not having their decisions public and open has ended up with a lot of contaminated water and a lot of dead people.” — Attorney Travis Stills

Edgar Ethington, environmental protection specialist with the CDPHE radiation management unit, agrees. “The kind of license that was issued to Valmont Butte was only to possess,” he says. “That is because the mill did not primarily purify source material. It was not primarily a uranium mill. They milled gold and fluorspar. The radioactive materials were incidental to the milling process. So regulatorily, very different material.”

It would seem that if the radioactive contamination at Valmont Butte is great enough to warrant a license being issued under the power granted to the state by the NRC, then it would follow that the NRC’s requirements for public hearings would still also apply. And if that’s the case, and the NRC’s interpretation of federal law still applies even though the state is now charged with administering the program, then a public hearing may have been required but not conducted for Valmont Butte licensing issues, including amendments and termination, no less than five times. Here’s a recap of the licensing history.

Allied Chemical was issued a license for radioactive materials in 1971. The license was amended twice later that same year to accept up to 1,500 cubic yards of “radium-226 impacted demolition debris” from the Boulder Housing Authority — the 200 truckloads of radium-contaminated soil from the Third and Pearl streets site.

The state issued a new radioactive materials license in 1977 for the continued storage of radioactive materials in the tailings pond. Tom Hendricks, after inquiring into this matter in 1984 while operating the Hendricks mill at the site, was informed that the license was considered still effective even after the five-year expiration date had passed, because — and here the CDPHE plays by the Atomic Energy Act’s rules — radioac tive materials licenses remain in force until officially terminated.

Finally, in 1999, the license was terminated by request from the Valmont Butte Corporation (VBC) and Lincoln Trust Company in exchange for a cleanup plan and a set of covenants to run with the land. The state of Colorado’s public health department approved the license termination, citing its authority granted by the NRC, and then approved the cleanup that had been performed by VBC. But after the CDPHE declared the site to be fully remediated, the EPA returned to find contamination all across the site, and that is what the City and Honeywell are currently attempting to clean up.

Also under the NRC regulations, in order for a license to be terminated, the remediation plan must be submitted beforehand, and this, too, is subject to public hearings. None of the past cleanup attempts, including the current city/ Honeywell Voluntary Cleanup Plan approved by the CDPHE, have ever been put before a public hearing, as defined by the NRC. If they had, the outcome could have been very different.

Had the state hosted public hearings on any of those occasions, people from the Native American Rights Fund, the Rocky Mountain Peace and Justice Center, the Valmont Cemetery Association, the Valmont Butte Heritage Alliance, adjacent landowners to the south and the landowners across the street to the north — whose land and wells have been being contaminated since the 1940s — would have had the chance to speak up about these issues. The question of groundwater on the site and whether contamination had spread or health issues were being created for people living in the surrounding communities might have been aired. By the time that the termination of the license was being discussed in 1999, Adrienne Anderson’s environmental ethics class at University of Colorado had done a study on the Valmont Butte site which resulted in a paper titled, “Toxic mess for sale.” Had there been a public hearing, their arguments about the safety of that site would have varied greatly from the picture otherwise painted for the residents of Boulder, as well as for the Boulder City Council, which does not seem to have been informed of the site’s true history by staff before being asked to buy the property with taxpayer dollars.

“Regardless of who’s running the site, reaching out to the public is essential,” says Travis Stills, an attorney with the Energy Minerals Law Center, which is working with the public in their protest of the new uranium mill near Nucla.

As for the current City/Honeywell remediation plan that started moving in clean dirt this week, the voluntary clean up process (VCUP) does not have a hearing provision, according to the CDPHE, but there “have been plenty of opportunities for public input into the voluntary cleanup plan,” Smith says.

But there hasn’t been a hearing with the opportunity for testimony under oath and cross-examination, as is required by the NRC.

“Really, at this point, I think the critical questions that we would ask are, is the voluntary cleanup plan protective of human health and environment — and we’ve made the determination that it is — and is it being implemented properly,” Smith says.

While such assurance should offer some comfort, it is difficult to find any, considering the state’s track record on remediation. Not only did the state wrongly declare Valmont Butte to be cleaned up in 1999, but a handful of uranium mill sites around the state of Colorado that have been “cleaned up” according to the CDPHE are still considered too dirty by the federal government for the Department of Energy to take possession of them as required by law.

“The Piñon Ridge Uranium Mill, the Cotter Uranium Mill in Cañon City, the Durita Uranium Mill, the Uravan Uranium Mill, the Schwartzwalder Uranium Mine all have seen serious problems and to one degree or another the health department, this radiation management unit, has been at the root of not following the required procedure,” says Jeff Parsons, staff attorney for the Western Mining Action Project. The activity at these sites has resulted in substantial contamination, he says.

“At the Durita and the Uravan, the state followed a process that the NRC doesn’t agree with, doesn’t recognize and won’t allow the state to let go of that license,” Parsons says. “The DOE and NRC have refused to allow those mills to go back to federal ownership because the state has failed to follow proper procedure. The state argues, obviously, that they are cleaned up and they think they’re adequate to turn over, but the federal government won’t take it because they can’t be assured, because the state didn’t follow the proper procedure.”

The Schwartzwalder Mine, a uranium mine near Golden, is contaminating Ralston Creek, which flows into Ralston Reservoir, a Denver drinking water supply, Parsons says.

Part of the argument for how these sites are handled is their proximity to populations, Parsons says. These sites are a mile from the nearest homes. The Valmont Butte tailings pile is 200 feet from the nearest drinking water well.

“These old mill sites present serious problems, and if they’re not a Superfund site it can be difficult to track back and collect all the responsible parties, but now that Boulder owns the land they’re pretty much responsible,” Parsons says.

Stills, who is also working on the Nucla site, claims there’s a pattern of the radioactive management division withholding information from Colorado residents. For the public to get careful and open analysis, he argues, they’ll have to demand it.

“They seem to take the view that it’s radioactive materials, they get to do whatever they want without oversight, and that’s exactly contrary to what these laws require,” Stills says. “These folks need to operate in the full public view, especially because their behavior has killed a lot of people in the last 80 years. … Not having these public meetings, not having their decisions public and open has ended up with a lot of contaminated water and a lot of dead people.”